United States v. Vento ( 2022 )

Case: 21-40357 Document: 00516355781 Page: 1 Date Filed: 06/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 14, 2022
No. 21-40357
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rodolfo Vento, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:19-CR-664-1
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Rodolfo Vento, Jr., was convicted through a jury trial of conspiracy to
transport and harbor aliens within the United States, in violation of 8 U.S.C.
§ 1324(a)(1)(A)(v)(I). He was sentenced to, inter alia, 120 months’
imprisonment. Vento asserts: the evidence was insufficient to support a
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-40357
conviction; the district court erred in admitting testimonial hearsay; and his
sentence was procedurally and substantively unreasonable.
Regarding Vento’s properly-preserved sufficiency challenge, in
reviewing de novo whether a rational trier of fact could find that the
Government proved the essential elements of this offense beyond a
reasonable doubt, we draw all reasonable inferences in favor of the jury’s
verdict, and do not reassess the weight given the evidence or the credibility
of witnesses. E.g., United States v. Peterson, 977 F.3d 381, 389 (5th Cir. 2020)
(explaining evidence is sufficient if “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt”
(citation omitted)). To convict Vento, the Government had to prove he
agreed with one or more individuals; to transport an alien illegally in the
United States; to further the alien’s unlawful presence; and did so
“knowingly or in reckless disregard of the fact that the alien’s presence in the
United States was unlawful”. United States v. Jimenez-Elvirez, 862 F.3d 527,
533–34 (5th Cir. 2017) (citation omitted) (explaining elements for conspiracy
to transport undocumented alien).
From, inter alia, the connections among Vento’s and others’
telephone records, the nature of the telephone contacts between them,
Vento’s jail-call conversations, and the testimony outlining both the routine
operations of the smuggling organization and Vento’s role in it, a rational
juror could infer he knowingly agreed with others to engage in the trafficking
of aliens for money and knew the aliens, including a child, were present
unlawfully in the United States. See § 1324(a)(1)(A)(v)(I); Staples v. United
States, 511 U.S. 600, 615 n.11 (1994) (noting “knowledge can be inferred from
circumstantial evidence”).
Turning to Vento’s next assertion, preserved Confrontation Clause
errors are reviewed de novo, subject to harmless-error review. E.g., United
States v. Cowards, 24 F.4th 409, 411 (5th Cir. 2022). Where, however, a party
fails to preserve the objection (as Vento concedes), review is only for plain
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error. E.g., United States v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007). Under
that standard, he must show a forfeited plain error (clear or obvious error,
rather than one subject to reasonable dispute) that affected his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes
such a showing, we have the discretion to correct the reversible plain error,
but generally should do so only if it “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings”. Id.According to Vento, the court’s admission at trial of multiple out-of-
court testimonial statements violated the Sixth Amendment’s Confrontation
Clause. Even assuming a clear or obvious error in the admission of the
statements, Vento has failed to show the error affected his substantial rights
in the light of the ample evidence of his participation in the smuggling
conspiracy and the harboring of the child. See Puckett, 556 U.S. at 135(explaining for an error to affect substantial rights, it must have “affected the
outcome” of proceeding (citation omitted)).
Concerning Vento’s sentencing challenges, although post-Booker, the
Sentencing Guidelines are advisory only, the district court must avoid
significant procedural error, such as improperly calculating the Guidelines
sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such
procedural error exists, a properly preserved objection to an ultimate
sentence is reviewed for substantive reasonableness under an abuse-of-
discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, as in this instance, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Vento fails to show the court clearly erred by imposing a six-level
enhancement under Guideline § 2L1.1(b)(2) (smuggling, transporting, or
harboring unlawful aliens) for an offense involving 25 to 99 aliens. See United
States v. Piper, 912 F.3d 847, 859 (5th Cir. 2019) (explaining court did not
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clearly err where factual findings were “plausible in [the] light of the record”
(citation omitted)). The unrebutted evidence from the trial and presentence
investigation report (PSR) plausibly showed that, at the least, the smuggling
organization involving Vento transported 23 aliens in three trips with one co-
defendant, and six in a separate trip.
Similarly unavailing is Vento’s preserved challenge that his
presumptively reasonable within-Guidelines sentence of 120 months is
substantively unreasonable. See United States v. Vargas, 21 F.4th 332, 337
(5th Cir. 2021) (explaining reasonable presumption may be rebutted by
showing “the sentence: (1) does not account for a factor that should have
received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors” (citation omitted)). Vento fails to show the court gave
weight to an improper factor or double counted when the court considered
his lengthy criminal history. Many of Vento’s prior convictions over a period
of 30 years were not accounted for in the calculation of his criminal-history
category and several of those reflected such serious conduct as assault,
unlawfully carrying a weapon, and driving under the influence. See United
States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008) (holding sentence
reasonable under sentencing factors in the light of, inter alia, defendant’s
extensive criminal history).
The sentence disparity resulting from the absence of a plea agreement
in this matter resulted from the appropriate application of the Sentencing
Guidelines to the facts of this proceeding, and it was neither unwarranted nor
clear error. Cf. United States v. Nichols, 376 F.3d 440, 443 (5th Cir. 2004)
(finding error where sentencing disparity was warranted on the record and
departure from the Guidelines was, therefore, unjustified). Additionally,
having considered Vento’s assertion and the PSR’s discussion of Vento’s
substance abuse, the court specifically provided for substance-abuse
counseling.
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In short, Vento’s disagreement with the court’s weighing of the
sentencing factors is insufficient to show clear error. See United States v.
Simpson, 796 F.3d 548, 560 (5th Cir. 2015) (holding objections to court’s
weighing of factors not sufficient for clear error).
AFFIRMED.
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